Nuzback v. Prince George's County et al

Filing 28

MEMORANDUM OPINION. Signed by Magistrate Judge Gina L Simms on 9/16/2022. (kk5s, Deputy Clerk)

Case 8:21-cv-00579-GLS Document 28 Filed 09/16/22 Page 1 of 17

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
(SOUTHERN DIVISION)
KATHRYN A. NUZBACK REVOCABLE
TRUST
Plaintiff,

)
)
)
)
v.
)
)
PRINCE GEORGE’S COUNTY, et al.,
)
)
Defendant.
)
__________________________________________)

Civil Case No.: GLS-21-579

MEMORANDUM OPINION
Pending before the Court is a “Motion to Dismiss or, Alternatively, for Summary
Judgment,” (ECF No. 21) (“Motion”), filed by Defendant Prince George’s County (“the County”)
and Defendant Prince George’s County Department of Permitting, Inspections, & Enforcement
(“Defendants”).

Plaintiff Kathryn A. Nuzback Revocable Trust (“Plaintiff”) has filed an

opposition to the Motion. (ECF Nos. 23). As set forth herein, the issues raised by the Motion have
been fully briefed; thus, no hearing is necessary. See Local Rule (L.R.) 105.6 (D. Md. 2018). For
the reasons set forth more fully herein, the Court will GRANT Defendant’s Motion.
I.

BACKGROUND 1
Plaintiff owns the property located at 14405 Baltimore Avenue, Laurel, MD 20707

(“Plaintiff’s Property”) (ECF No. 1, ¶ 4, “Complaint”). Plaintiff’s allegations concern a 285’ by

1

The Court construes Defendants’ Motion a motion to dismiss: (1) for lack of subject matter jurisdiction; and (2) for
failure to state a claim under Fed. R. Civ. P. 12(b)(6). See Part II.B.2. Unless otherwise noted, the facts are taken from
the Complaint, ECF No. 1, and are construed in the light most favorable to the non-moving party, Plaintiff. Baltimore
Scrap Corp. v. Exec. Risk Specialty Ins. Co., 388 F. Supp. 3d 574, 584 (D. Md. 2019).

1

Case 8:21-cv-00579-GLS Document 28 Filed 09/16/22 Page 2 of 17

50’ tract of land that contains a right of way (“Subject Property”). (Complaint, ¶ 5). The Subject
Property sits to the north of Plaintiff’s Property. (Id.).
On June 4, 2008, the Nazario Family, LLC, (“Nazario”), purchased the property at 14401
Baltimore Avenue, Laurel, MD (“Nazario Property”), which sits to the immediate north of the
Subject Property. (Id., ¶ 8). The Subject Property lies in between the Nazario Property (14401
Baltimore Avenue) and the Plaintiff’s Property (14405 Baltimore Avenue). (Id., ¶ 9).
On June 7, 2013, Nazario contacted the Director of the Prince George’s County Department
of Permitting, Inspections, and Enforcement (“DPIE”) about the “vacation” of the Subject
Property. (Id., ¶ 10). DPIE, relying on a memorandum written in 1991 related to the Subject
Property (“the 1991 Memorandum”), determined that “the County did not have a claim on the
Subject Property;” accordingly, the Subject Property belonged to both Plaintiff and Nazario. (Id.,
¶¶ 14, 16, 19) (emphasis supplied). 2
As set forth below, between 2016-2020 Plaintiff pursued three separate lawsuits related in
some fashion to the Subject Property, losing all of them. For simplicity’s sake, the Court refers to
them as Nuzback I, Nuzback II, and Nuzback III. 3
On March 29, 20216, Nazario filed suit to quiet title of the Subject Property under a theory
of adverse possession in Prince George’s County Circuit Court. (“Nuzback I”) (Id., ¶ 25).
Specifically, Nazario sought to obtain the rest of the right of way abutting his property, i.e., the
Subject Property. On August 2, 2017, the Circuit Court granted Nazario’s summary judgment

On February 5, 2015, Nazario filed a plat of subdivision to divide its lot in to two lots, and in the plat, Nazario
incorporated approximately half of the right-of-way into one of the lots, which the County approved. Nuzback I, 2018
WL 6012455, at *1. The Subject Property in this case constitutes the remaining portion of the right-of-way that was
not incorporated in the plat. Id.
3
In chronicling the history of these case, this Court takes judicial notice of public records, including of state-court
docket sheets: CAE 16-10213, CAE-18-11322, and CAL-20-13248. See Phillips v. Pitt County Mem. Hosp., 572 F.3d
176, 180 (4th Cir. 2009); see also Moffitt v. Asset Mgmt. W. 18, LLC, Civ. No. PWG-14-3975, 2015 WL 6715241, at
*1 (D. Md. Nov. 2, 2015) (taking judicial notice of Maryland state court dockets).
2

2

Case 8:21-cv-00579-GLS Document 28 Filed 09/16/22 Page 3 of 17

motion, holding that there was no genuine dispute of fact as to whether Nazario’s possession of
the Subject Property was adverse (i.e., actual, notorious, exclusive, and continuous or
uninterrupted for a period of twenty years). (ECF No. 21-2). Plaintiff filed a motion to reconsider
the court’s order, which was denied on October 27, 2017.
Subsequently, Plaintiff appealed the Circuit Court’s orders granting summary judgment
and denying Plaintiff’s motion to reconsider to the Court of Special Appeals. Ultimately, the
Maryland Court of Special Appeals affirmed the Circuit Court’s decision, holding that neither the
County nor the State of Maryland owned the Subject Property. When rendering its decision, the
appellate court opined that the Circuit Court did not err in granting summary judgment, where
Plaintiff failed to produce any admissible evidence that it possessed the land or that the County or
State owned it in opposition to Nazario’s motion for summary judgment. The appellate court
further held that the Circuit Court did not abuse its discretion in denying the motion for
reconsideration, where Plaintiff elected to first bring to the court’s attention an affidavit from Mr.
Nuzback that he had adversely possessed the land for the requisite number of years only upon
reconsideration, rather than raising such evidence earlier in connection with its opposition to the
summary judgment motion. See Nuzback I, CAE-16-10213, 2018 WL 6012455, at *3-*5. (Md. Ct.
Spec. App. Nov. 15, 2018), cert. denied, 462 Md. 577, 201 A.3d 1238 (2019).
On April 12, 2018, Plaintiff filed a complaint in Prince George’s County Circuit Court
against Prince George’s County, the State of Maryland, and Nazario, seeking a declaratory
judgment. (“Nuzback II”). (ECF No. 21-4). Specifically, Plaintiff again sought a determination
from a state court that the Subject Property belonged to Prince George’s County or the State of
Maryland, this time arguing that Defendants had improperly relied upon the 1991 memorandum
to determine that neither the County nor the State had an interest in the Subject Property. (ECF

3

Case 8:21-cv-00579-GLS Document 28 Filed 09/16/22 Page 4 of 17

No. 21-4, ¶¶ 12, 14, 18, 24). Alternatively, Plaintiff sought a determination that: (a) if neither the
County nor State still owned the Subject Property, one of these governmental entities had illegally
conveyed or abandoned its rights in the same, in violation of the statutes and regulations related to
the disposition of public land; or (b) to the extent that the County or State intended to dispose of
the Subject Property, Plaintiff was entitled to claim a one-half interest in the same. (Id., ¶¶ 19, 20,
23, 25, 26). Plaintiff’s complaint did not include any specific reason why Plaintiff would be
entitled to one-half of the Subject Property.
On July 10, 2019, the Circuit Court granted summary judgment for the County and the
State of Maryland, holding that “the property in this matter has, in a final order, been granted to
the Nazario Family and there is no genuine dispute of material fact regarding the ownership of this
property.” (ECF No. 21-7). A review of the docket sheet reflects that Plaintiff chose not to appeal
this decision.
On July 1, 2020, Plaintiff again filed a complaint in Prince George’s County Circuit Court,
this time against the Maryland-National Capital Park and Planning Commission (“M-NCPPC”)
and DPIE, alleging that M-NCPPC and DPIE failed to provide documents in violation of the
Maryland Public Information Act (“MPIA”). (“Nuzback III”). (ECF No. 21-8). In this complaint,
Plaintiff alleged that it had learned during Nuzback I that DPIE had determined that the Subject
Property was not property of the County based on the 1991 Memorandum and attached a letter to
the complaint. (Id., ¶ 9, pp. 15-16). In this letter (“December 7, 2017 Letter”), the director of the
DPIE provided more information about DPIE’s determination. (Id., pp. 15-16).

4

Specifically, the DPIE director identified that the Subject Property makes up part of a rightof-way, Magnolia Street, but that this section of Magnolia Street was never built and remains a
The parties do not dispute the authenticity of this letter, nor the facts contained therein. Indeed, Plaintiff relies upon
this letter in Nuzback III, making it part of the public record. (See ECF No. 21-8).

4

4

Case 8:21-cv-00579-GLS Document 28 Filed 09/16/22 Page 5 of 17

“paper street.” (Id., p. 15). In fact, this section of Magnolia Street was being utilized for parking,
not as a road. (Id.). The Director added that on June 7, 2013, he received an email from counsel
for Nazario, who wanted to discuss “vacation” of the Subject Property. (Id.). After investigating
the matter, DPIE determined that Prince George’s County had no claim on the Subject Property,
relying on the 1991 Memorandum. (Id.). The director related that the memorandum stated that the
plat that “established” Magnolia Street was recorded in 1890, predating the section of the County
Code enacted in 1908 that established platted rights of way as automatically designated for public
use. (Id.). Instead, Nazario and Plaintiff, the property owners on either side of “such [a] right[]-ofway,” possessed ownership interests to the center of the “road.” (Id.). Accordingly, the director
wrote that “[t]he County concludes that this is a private property matter that should be addressed
through legal means between the interested property owners.” (Id., p. 2).
According to the Plaintiff, in December 2019, it submitted document requests pursuant to
the MPIA to each defendant for a copy of the 1991 Memorandum and other documents related to
the Subject Property. (Id., ¶¶ 6). DPIE produced some documents responsive to Plaintiff’s request,
however, neither DPIE nor M-NCPPC provided the 1991 Memorandum. (Id., ¶¶ 13, 15, 16, 17,
18). On the eve of trial, Plaintiff received a letter from Prince George’s County, in which the
County stated that it did not possess a copy of the Memorandum. As a result, Plaintiff voluntarily
dismissed the lawsuit. (ECF Nos. 27, p. 3; 27-1). Nuzback III was dismissed on April 11, 2022.
On March 5, 2021, Plaintiff filed a one-count Complaint against Defendants in this Court,
citing to 42 U.S.C. § 1983 and alleging in bald fashion that Defendants violated Plaintiff’s Fifth
and Fourteenth Amendment rights by deciding that the County did not own the Subject Property.
(ECF No. 1, ¶¶ 37, 38). Plaintiff seeks “any and all relief allowed by law” and monetary damages.
(Id., ¶ 39). However, the Court finds that Plaintiff does not clarify whether it is attempting to

5

Case 8:21-cv-00579-GLS Document 28 Filed 09/16/22 Page 6 of 17

allege: (1) a violation of the Takings Clause of the Fifth Amendment; (2) a procedural due process
violation of the 14th Amendment; and/or (3) a substantive due process violation of the 14th
Amendment.
This case was referred to the undersigned for all further proceedings, to which the parties
have consented (ECF Nos. 13, 16, 17). Defendants filed their Motion, Plaintiff filed its opposition,
and Defendants filed their reply. (“Reply”). Finding that the Defendants raised new issues in the
Reply, the Court permitted Plaintiff to file a surreply. Plaintiff timely filed its surreply. (ECF No.
27, “Surreply”).
II.

STANDARDS OF REVIEW
A. Subject Matter Jurisdiction
As a preliminary matter, a federal court always has “an independent obligation to determine

whether subject-matter jurisdiction exists, even when no party challenges it.” Hertz Corp. v.
Friend, 559 U.S. 77, 94 (2010). If a federal court lacks subject matter jurisdiction, then dismissal
is appropriate. See Fed. R. Civ. P. 12(h)(3).
B. Rule 8 and Rule 12(b)(6)
1.

Fed. R. Civ. P. 8

Pursuant to Fed. R. Civ. P. 8(a)(2), a complaint must contain a “short and plain statement
of the claim showing that the pleader is entitled to relief[.]” The determination of whether a
complaint runs afoul of Rule 8 is based on “various factors, including the length and complexity
of the complaint [and] whether the complaint was clear enough to enable the defendant[s] to know
how to defend [themselves].” Sewarz v. Long, 407 F. App’x 718, 719 (4th Cir. 2011) (internal
citations omitted). Although it is true that federal pleading rules “do not countenance dismissal of
a complaint for imperfect statement of the legal theory supporting the claim asserted,” Johnson v.

6

Case 8:21-cv-00579-GLS Document 28 Filed 09/16/22 Page 7 of 17

City of Shelby, Miss., 574 U.S. 10, 11 (2014) (per curiam), a complaint with mere “‘naked
assertions’ of wrongdoing” are insufficient to state a claim for relief. Francis v. Giacomelli, 588
F.3d 186, 193 (4th Cir. 2009). Put another way, a complaint that contains bald accusations or “no
more than labels and conclusions” or “a formulaic recitation of the elements of a cause of action”
is insufficient to state a plausible claim for relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556
(2007) (complaint must set forth enough facts as to suggest a “cognizable cause of action”).
2.

Fed. R. Civ. P. 12(b)(6)

In this case, the Defendants have framed their Motion in the alternative, either as a Fed.
R. Civ. P. 12(b)(6) motion to dismiss, or a summary judgment motion, filed pursuant to Fed. R.
Civ. P. 56. Such a motion implicates this Court’s discretion pursuant to Rule 12(d). Kensington
Volunteer Fire Dep’t, Inc. v. Montgomery Cty., 788 F. Supp. 2d 431, 436-37 (D. Md. 2011).
In resolving this Motion, this Court declines to consider any materials beyond the pleadings
or public documents subject to judicial notice. Accordingly, the Court shall treat Defendants’
Motion as a Rule 12(b)(6) motion to dismiss and declines to address the alternative motion for
summary judgment. See Hall v. Virginia, 385 F.3d 421, 424 n. 3 (4th Cir. 2004) (observing that a
court does not convert a motion to dismiss to a motion for summary judgment when it takes judicial
notice of public records); Kensington, 788 F. Supp. 2d at 437 (treating motion styled in alternative
as motion to dismiss where it could be resolved without considering any documents outside of the
pleadings).
A defendant who files a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) is asserting
that, even if a court construes the facts advanced in the Plaintiff’s complaint as true, that complaint
fails to state a claim upon which relief can be granted. To survive a motion to dismiss, a complaint
must provide a defendant with “fair notice of what the claim is and the grounds upon which it

7

Case 8:21-cv-00579-GLS Document 28 Filed 09/16/22 Page 8 of 17

rests.” Ray v. Roane, 948 F.3d 222, 226 (4th Cir. 2020) (citing Tobey v. Jones, 706 F.3d 379, 387
(4th Cir. 2013)). In other words, a complaint must contain sufficient facts and must state a
“plausible claim for relief.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
When resolving a 12(b)(6) motion, a court accepts as true the well-pleaded allegations in a
complaint. Lokhova v. Halper, 995 F.3d 134, 141 (4th Cir. 2021). Furthermore, a court “does not
resolve contests surrounding the facts [or] the merits of a claim.” Ray, 948 F.3d at 226 (citation
omitted).
III.

DISCUSSION
Defendants advance several arguments in support of dismissing the Complaint: (1) the

Rooker-Feldman doctrine precludes this Court from exercising subject matter jurisdiction over this
case; (2) this Court should abstain from entertaining this case under the Younger doctrine; (3)
Plaintiff failed to state a claim for a violation of the Takings Clause of the Fifth Amendment or for
a violation of the Fourteenth Amendment; (4) the statute of limitations bars Plaintiff’s Complaint;
(5) collateral estoppel bars Plaintiff’s Complaint;(6) res judicata bars Plaintiff’s Complaint; and
(7) the County is exempt from liability under the public duty doctrine. (Motion, pp. 4-6; Reply,
pp. 2-8).
Plaintiff counters with the following: (1) the Rooker-Feldman doctrine does not apply to
this case; (2) the Younger doctrine does not warrant abstention; (3) collateral estoppel does not bar
Plaintiff’s Complaint; (4) res judicata does not bar Plaintiff’s Complaint; and (5) the statute of
limitations does not bar Plaintiff’s Complaint. (ECF No. 23-1 “Opposition”, pp. 4-7; Surreply, pp.
4-8). Plaintiff also argues that summary judgment would be premature prior to discovery.
(Opposition, p. 7).

8

Case 8:21-cv-00579-GLS Document 28 Filed 09/16/22 Page 9 of 17

As set forth herein, the Court resolves the issues raised by Defendants in arguments (1)
through (4), which makes it unnecessary for the Court to resolve the remaining issues.
A. Rooker-Feldman Doctrine
Although Defendants have not articulated specifically that this case should be dismissed
under Fed. R. Civ. P. 12(b)(1), they do argue that pursuant to the Rooker-Feldman doctrine, this
Court does not have subject matter jurisdiction. The Rooker-Feldman doctrine encompasses the
limited circumstances where the Supreme Court’s appellate jurisdiction over state court judgments
outlined in 28 U.S.C. § 1257 precludes lower federal courts from exercising subject matter
jurisdiction. Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 291 (2005). In
particular, the doctrine prevents a federal court from hearing cases “brought by state-court losers
complaining of injuries caused by state-court judgments rendered before the district court
proceedings commenced[.]” Exxon, 544 U.S. at 284. If the plaintiff does not seek review of the
state court judgment itself but “presents an independent claim,” then the Rooker-Feldman doctrine
is no “impediment to the exercise of federal jurisdiction.” Thana v. Bd. of License Commissioners
for Charles Cnty., Maryland, 827 F.3d 314, 320 (4th Cir. 2016). Even where a ruling in federal
court “cannot occur without effectively finding that the state court had erred,” such a conflict is to
be addressed instead by traditional preclusion principles. Diamond v. U.S. Bank, N.A., Civ. No.
TDC-19-1458, 2020 WL 2319112, at *3 (D. Md. May 11, 2020) (citing Thana, 827 F.3d at 322).
In this case, Plaintiff seeks damages for an alleged violation of its Fifth and Fourteenth
Amendment rights based on actions taken by Defendants before any litigation took place.
(Complaint, ¶¶ 10, 19). Therefore, Plaintiff does not complain of an “injury caused by a state-court
judgment.” Exxon, 544 U.S. at 284. In addition, Plaintiff does not seek to have the state court
judgments in any of the prior cases overturned. Accordingly, this action is not barred by the

9

Case 8:21-cv-00579-GLS Document 28 Filed 09/16/22 Page 10 of 17

Rooker-Feldman doctrine, even if the action includes factual and legal arguments similar to those
made in state proceedings. Thana, 827 F.3d at 321.
B. Younger Abstention
Abstention pursuant to Younger v. Harris, 401 U.S. 37, 41 (1971), is a “mandatory rule of
equitable restraint, requiring the dismissal of a federal action.” Smallwood v. Nationstar Mortg.,
LLC, Civ. No. PX-16-4008, 2017 WL 6527251, at *3 (D. Md. Dec. 21, 2017) (quoting Nivens v.
Gilchrist, 444 F.3d 237, 247 (4th Cir. 2006)). In Younger, supra, the Supreme Court held that
federal courts should abstain from enjoining a pending criminal prosecution. 5 In the years
following Younger, the Supreme Court expanded this doctrine to three types of state proceedings
warranting abstention: (1) “ongoing state criminal prosecutions;” (2) “certain civil enforcement
proceedings” akin to a criminal proceeding often referred to as “quasi-criminal” proceedings; and
(3) civil proceedings involving orders that are “uniquely in furtherance of the state courts’ ability
to perform judicial functions,” e.g., a civil contempt order, bond procedures. Air Evac EMS, Inc.
v. McVey, 37 F.4th 89, 96 (4th Cir. 2022). Where the underlying case does not fit into one of these
three categories, Younger abstention does not apply. Sprint Commc'ns, Inc. v. Jacobs, 571 U.S. 69,
73 (2013) (quoting Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817
(1976).
Defendants appear to argue that Nuzback II is a pending state proceeding warranting
abstention pursuant to Younger v. Harris, 401 U.S. 37, 41 (1971). (ECF No. 24, pp. 7-8). However,
the proceedings in Nuzback II do not “fit any historical precedent applying the doctrine.” Jonathan
R. by Dixon v. Justice, 41 F.4th 316, 328 (4th Cir. 2022). Nuzback II concerned whether Plaintiff

The term “pending” distinguishes “state proceedings which have already commenced from those which are merely
incipient or threatened,” and includes cases where a final judgment has been issued in state court, but the plaintiff has
not exhausted his or her state court appellate remedies by appealing that judgment. Huffman v. Pursue, Ltd., 420 U.S.
592, 607-11 (1975).

5

10

Case 8:21-cv-00579-GLS Document 28 Filed 09/16/22 Page 11 of 17

was entitled to a declaratory judgment that it owned one-half of the Subject Property. (ECF No.
21-4). This Court does not find, and indeed, Defendants make no argument, that this proceeding
falls into one of the three categories of cases covered by Younger abstention. See Sprint Commc'ns,
Inc. v. Jacobs, 571 U.S. 69, 73 (2013). Moreover, even if Younger applied, this Court would only
be able to stay, not dismiss, on Younger abstention grounds, because Plaintiff seeks damages and
not declaratory relief. See Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 721 (1996).
Accordingly, the Court will not stay or dismiss these proceedings pursuant to Younger.
C. Failure to State a Claim
In the Complaint, Plaintiff generally claims that Defendants violated 42 U.S.C. § 1983 and
briefly mentions violations of the Fifth Amendment and the Fourteenth Amendment. (Complaint,
¶¶ 3, 37).
Defendants’ specific argument is that Plaintiff has failed to state a claim for relief under
the Fifth and Fourteenth Amendment, because the Complaint does not adequately allege that
Plaintiff has a property interest in the Subject Property. (Motion, p.5 n.1). In their Reply,
Defendants further assert that Plaintiff has not alleged that Defendants took its property, nor that
Plaintiff had a property interest in the Subject Property. In sum, then, Plaintiff fails to state a claim
under the Takings Clause of the Fifth Amendment (“Takings Clause”). (Reply, pp. 2-3).
Under Section 1983, a plaintiff may file a claim against any person 6 who, acting under
color of state law, “subjects, or causes to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities

A municipality is considered a “person” under Section 1983 and can be sued directly for monetary, declaratory, or
injunctive relief where the challenged action “implements or executes [an] ordinance, regulation, or decision
officially adopted and promulgated by that body’s officers. Monell v. N.Y. Dep’t of Social Servs., 436 U.S. 658, 690
(1978).
6

11

Case 8:21-cv-00579-GLS Document 28 Filed 09/16/22 Page 12 of 17

secured by the Constitution and laws” of the United States. Graves v. Loi, 930 F.3d 307, 318-19
(4th Cir. 2019). Section 1983 is not a “source of substantive rights,” but instead provides a “method
for vindicating federal rights elsewhere conferred.” Albright v. Oliver, 510 U.S. 266, 271 (1994)
(quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). The “first step” in a Section 1983
claim is to “pinpoint the specific right that has been infringed.” Id. (citation omitted). Put another
way, to state a claim under Section 1983, a plaintiff must allege: (1) that a right secured by the
Constitution or laws of the United States was violated, and (2) that the alleged violation was
committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
To assert a claim under the Takings clause, Plaintiff must allege that: (1) it has a legitimate
property interest; and (2) this property interest was “taken” through “physical invasion or
governmental regulation.” Horne v. Mayor & City Council of Baltimore, Civ. No. RDB-07-1110,
2008 WL 8882751 (D. Md. Feb 27, 2008) (citing Penn Cent. Transp. Co. v. City of New York, 438
U.S. 104, 105 (1978); see also Washlefske v. Winston, 234 F.3d 179, 183 (4th Cir. 2000).
To establish a 14th Amendment procedural due process violation, Plaintiff must allege that:
(1) it had property or a property interest; (2) the state deprived it of that property or property
interest; and (3) the state did so without due process of law, i.e., notice and an opportunity to be
heard. Sunrise Corp. of Myrtle Beach v. City of Myrtle Beach, 420 F.3d 322, 328 (4th Cir. 2005)
(citation omitted); see also Mathews v. Eldridge, 424 U.S. 319, 333 (1976).
To establish a 14th Amendment substantive due process violation, Plaintiff must allege
that: (1) it had property or a property interest; (2) the state deprived it of this property or property
interest; and (3) that the state's action “falls so far beyond the outer limits of legitimate
governmental authority that no process could cure the deficiency.” Quinn v. Board of County
Commissioners for Queen Anne's County, Md., 862 F.3d 433, 443 (4th Cir. 2017).

12

Case 8:21-cv-00579-GLS Document 28 Filed 09/16/22 Page 13 of 17

Reviewing the Complaint, the Court finds that Plaintiff only refers in passing to violations
of the Fifth Amendment and the Fourteenth Amendment. Indeed, only two paragraphs of the
Complaint even refer to these constitutional amendments, and the allegations of violations are
scant on detail. (Complaint, ¶¶ 3, 37). More important, nowhere in the Complaint does Plaintiff
ever articulate whether it asserts a cause of action under the Takings Clause of the Fifth
Amendment. In addition, the Plaintiff fails to clearly articulate whether it raises a 14th Amendment
procedural due process or a substantive due process challenge, or both. Moreover, nowhere in the
Complaint does Plaintiff clearly articulate the property interest at issue, let alone a legitimate one.
Nor does the Plaintiff clearly articulate which actor(s) have violated his rights, and how those
actions harmed its interest (e.g., these defendants took the property yet failed to provide notice or
an opportunity to be heard). Similarly, Plaintiff fails to clearly articulate which state action(s) fall
“so far beyond the outer limits” of legitimate governmental authority. Finally, Plaintiff has not
clearly articulated a causal connection between any actions taken by a state actor and the damages
it seeks.
Accordingly, this Court cannot find that Plaintiff has satisfied the pleading requirements
under Iqbal, 556 U.S. at 678, Twombly, 550 U.S. at 556, or Fed. R. Civ. P. 8(a). Instead, the Court
holds that Plaintiff has not stated a claim upon which relief can be granted under Rule 12(b)(6).
Accordingly, the Complaint is dismissed.
E. Leave to Amend the Complaint and Statute of Limitations
Having decided that the Complaint as drafted is inadequate, the next logical question may
be whether the Court should, before dismissing the action, afford the Plaintiff the opportunity to
amend its Complaint to cure its defects. See Fed. R. Civ. P. 15(a)(2). 7
Federal Rule of Civil Procedure 15(a)(1)(B) gives a plaintiff the freedom to amend his complaint once as a matter
of course within twenty-one days after service of a motion under Rule 12(b), (e), or (f). After that point, a plaintiff
7

13

Case 8:21-cv-00579-GLS Document 28 Filed 09/16/22 Page 14 of 17

Although a court should grant leave to amend when justice so requires, a court should not
automatically do so. Foman v. Davis, 371 U.S. 178, 182 (1962). A court should deny leave to
amend a pleading where prejudice, bad faith, or futility exists. LifeWise Family Fin. Sec. v. Holden
(In re Triangle Capital Corp. Sec. Litig.), 988 F.3d 743, 750 (4th Cir. 2021).
In its pleading, Plaintiff asserts that: (1) the statute of limitations was tolled by
administrative orders issued by the Maryland Court of Appeals due to the COVID-10 pandemic;
and (2) it disputes that the claim accrued as of December 7, 2017. (Opposition, pp. 6-7).
In this case, the Court examines whether the statute of limitations would bar the Plaintiff
from filing its claim. If barred, any amendment would be futile. Section 1983 does not include a
statute of limitations. Owens v. Balt. City State's Attorney's Office, 767 F.3d 379, 388 (4th Cir.
2014). Accordingly, to determine the timely filing of a § 1983 claim, courts use the statute of
limitations from the most analogous state law cause of action. See id. For Section 1983 lawsuits,
that cause of action is a personal-injury lawsuit. See Owens v. Okure, 488 U.S. 235, 249–50 (1989).
Maryland law affords plaintiffs three years to file a personal injury claim. See Md. Code Ann., Cts.
& Jud. Proc. § 5–101. Plaintiff therefore had three years from the date of accrual to timely file its
suit.
The Court is not persuaded by Plaintiff’s argument that the administrative orders issued by
the Maryland Court of Appeals tolled the statute of limitations by 122 days in this case due to the
COVID-19 pandemic. (Opposition, pp. 6-7). The COVID-19-related Standing Orders for this
federal court provide that statutes of limitations were not tolled during the COVID-19 pandemic.
McGill v. Koros, LLC, Civ. No. JKB-20-03191, 2021 WL 4170402, at *6 (D. Md. Sept. 14, 2021);

may not amend his complaint as a matter of course under Rule 15 but may only do so “with the opposing party’s
written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). A court should freely grant leave to amend when “justice
so requires.” Fed. R. Civ. P. 15.

14

Case 8:21-cv-00579-GLS Document 28 Filed 09/16/22 Page 15 of 17

see, e.g., Standing Order 2020-05; Standing Order 2020-07; Standing Order 2020-11. This Court
further finds that the orders issued by the Maryland Court of Appeals applied only to “matters
required to be filed in a Maryland state trial or appellate court,” and therefore do not apply to
Plaintiff’s 42 U.S.C. § 1983 claim- a federal cause of action. (See ECF No. 23-3, p. 2). Compare
Touko v. United States, Civ. No. GJH-20-1113, 2021 WL 2685328, at *3 (D. Md. June 29, 2021)
(Maryland administrative order tolling statute of limitations did not apply to federal claim filed in
federal court) with Liberty Mut. Ins. Co. v. Murphy, Civ. No. SAG-20-1961, 2021 WL 2784264,
at *4 (D. Md. July 2, 2021) (Maryland administrative order tolling statute of limitations applied to
claim brought in diversity, pursuant to Erie doctrine) and Robinson v. City of Mount Rainier, Civ.
No. GJH-20-2246, 2021 WL 1222900, at *14 n.16 (D. Md. Mar. 31, 2021) (Maryland
administrative order tolling statute of limitations applied to claim brought in state court, then
removed to federal court).
The date of accrual for a Section 1983 cause of action is a question of federal law
“conforming in general to common-law tort principles.” McDonough v. Smith, 139 S. Ct. 2149,
2155 (2019) (citing Wallace v. Kato, 549 U.S. 384, 388 (2007). The limitations period accrues
when a plaintiff knows or has reason to know of the injury forming the basis of the action.
Thompson v. Pretzello, Civ. No. RDB-15-1302, 2016 WL 2610112, at *6 (D. Md. May 5, 2016)
(citing Cox v. Stanton, 529 F.2d 47, 50 (4th Cir. 1975). Specifically, a plaintiff need only possess
“sufficient facts about the harm done to him that reasonable inquiry will reveal his cause of action.”
Rich v. Hersl, Civ. No. ELH-20-488, 2021 WL 2589731, at *9 (June 24, 2021) (quoting Nasim v.
Md. House of Correction, 64 F.3d 951, 955 (4th Cir. 1995)).
Defendants argue that Plaintiff knew by December 7, 2017, that the County determined
that it had no claim to the right-of-way. (Motion, p. 6). Therefore, Plaintiff’s claim, filed on March

15

Case 8:21-cv-00579-GLS Document 28 Filed 09/16/22 Page 16 of 17

19, 2021, was filed outside of the three-year statute of limitations. (Complaint). Plaintiff counters
that it “disputes” Defendants’ date of December 7, 2017. (Opposition, p. 6). However, Plaintiff
fails to point to any facts to support a date from which this Court can infer that Plaintiff had reason
to know of the injury forming the basis of its action. (Id.).
The Court finds that Plaintiff’s Complaint is time-barred due to two documents subject to
judicial notice: (1) Nazario’s Verified Amended Complaint, filed in Nuzback I; and (2) the
December 7, 2017 Letter, filed in Nuzback III. These two documents provided Plaintiff with
sufficient facts about the alleged harm, such that a reasonable inquiry would reveal its cause of
action. Rich, 2021 WL 2589731, at *9; see Ten-X, Inc. v. Pasha Realty Holdings, LLC, Civ. No.
DLB-21-562, 2022 WL 1273132, at *3 (D. Md. Apr. 28, 2022) (court may take judicial notice of
public filings for purpose of deciding whether statute of limitations bars complaint when resolving
a motion to dismiss).
First, on November 17, 2016, Nazario filed its Verified Amended Complaint to Quiet Title
in Nuzback I against Plaintiff, alleging in Paragraph 10 that during the 2013 investigation of the
Subject Property, “Prince George’s County determined that the County had never formally
accepted title to the [Subject Property]” and therefore the property belonged to Nazario and
Plaintiff. (ECF No. 21-5, p. 29).
Second, Plaintiff received the December 7, 2017 Letter, which provided more detail about
the determination that the County did not own the Subject Property. Plaintiff then appended this
letter to its complaint in Nuzback III, alleging that it had learned about DPIE’s determination
during the course of Nuzback I. (ECF No. 21-8, ¶ 2; pp. 15-16). Even construing all reasonable
inferences in the favor of the Plaintiff, the Court finds that the statute of limitations bars this action.

16

Case 8:21-cv-00579-GLS Document 28 Filed 09/16/22 Page 17 of 17

Because the Court finds that it would be futile to amend the Complaint, the action is
dismissed with prejudice. King v. Rubenstein, 824 F. 3d 206, 225 (4th Cir. 2016). 8
IV.

CONCLUSION
For the foregoing reasons, the Motion to Dismiss filed by Defendants will be granted. The

Complaint will be dismissed.
A separate order will follow.
Dated: September 16, 2022

____________/s/___________
The Honorable Gina L. Simms
United States Magistrate Judge

Regarding Defendants’ collateral estoppel argument, the Court finds that only the issue of whether the County or
the State of Maryland owned the Subject Property has already been litigated and was actually determined in Nuzback
I and is therefore barred by collateral estoppel. See Nuzback I, 2018 WL 6012455, at *3 (holding that neither the
County nor the State owned the Subject Property); Lucero v. Early, Civ. No. GLR-13-1036, 2018 WL 4333745, at *3
(D. Md. Sept. 11, 2018) (listing elements for collateral estoppel). This determination as to whether the County or the
State owned the Subject Property was a critical and necessary part of the Nuzback I decision because as the Maryland
Court of Special Appeals noted, Nazario would not have been able to adversely possess land owned by the
government. Id. The Nuzback I judgment was final and valid, and Plaintiff had a “full and fair opportunity” to litigate
this issue but failed to submit any admissible evidence in opposition to the motion for summary judgment. Nuzback I,
2018 WL 6012455, at *4. In sum, in Nuzback I, the court held that neither the County nor the State of Maryland
owned the Subject Property and that Nazario obtained title to it from Plaintiff through adverse possession, and Plaintiff
is not permitted to relitigate that issue now. The Court does not find, however, that the issue raised in the instant case–
whether the Defendants’ actions amount to a Section 1983 action that resulted in measurable harm to Plaintiff–is
identical to any issues previously litigated and actually determined in a prior proceeding.
8

17